On appeal from the Department of Veterans Affairs (VA) Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to service connection for post-thoracotomy pain
syndrome.
REPRESENTATION
Veteran represented by: Veterans of Foreign Wars of the United States
ATTORNEY FOR THE BOARD
N. McElwain, Associate Counsel
INTRODUCTION
The veteran had active service from March 2000 to November
2001.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a decision of March 2002 by the
Department of Veterans Affairs (VA) St. Petersburg, Florida,
Regional Office (RO).
FINDING OF FACT
1. The evidence does not clearly and unmistakably show that
a schwannoma preexisted service.
2. The veteran has post-thoracotomy pain syndrome as a
result of the in-service excision of a schwannoma.
CONCLUSIONS OF LAW
The criteria for service connection for post-thoracotomy pain
syndrome have been met. 38 U.S.C.A. §§ 1110, 1111 (West
2002); 38 C.F.R. §§ 3.303, 3.306 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Service connection may be granted for a disability resulting
from injury or disease incurred in or aggravated by active
service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. To
establish service connection for the claimed disorder, there
must be medical evidence of a current disability; medical or,
in certain circumstances, lay evidence of in-service
incurrence or aggravation of a disease or injury; and medical
evidence of a nexus between the claimed in-service disease or
injury and the current disability.
Every veteran shall be taken to have been in sound condition
when examined, accepted, and enrolled for service, except as
to defects, infirmities, or disorders noted at the time of
examination, acceptance, and enrollment. 38 U.S.C.A. § 1111;
38 C.F.R. § 3.304(b).
The service medical records have been misplaced and cannot be
reconstructed. The following is adopted from the February
2004 statement of the case. The February 2000 entrance
medical examination reported normal findings for all systems,
with no findings of a mediastinal mass. Consequently, the
veteran is presumed to have been sound at entry. An August
2000 chest x-ray showed a mediastinal mass. A right
thoracotomy and excision of the mass was performed in
September 2000. The mass was pathologically diagnosed as a
schwannoma with prominent degenerative changes.
Subsequently, the veteran began complaining of persistent
pain along the incision, and he began treatment at a pain
clinic in December 2000. The veteran was diagnosed with
post-thoracotomy pain syndrome.
The evidence is clear that a mass was excised from the
veteran while in service and that post-thoracotomy pain
syndrome is a residual of that mass and its excision. The
issue is whether the mass was incurred in or aggravated by
service. If the mass was not incurred in or aggravated by
service, then the post-thoracotomy pain syndrome cannot be
service-connected.
VA's General Counsel has held that to rebut the presumption
of sound condition under 38 U.S.C. § 1111, VA must show by
clear and unmistakable evidence both that the disease or
injury existed prior to service and that the disease or
injury was not aggravated by service. In determining whether
a disorder existed prior to service, it is important to look
at accepted medical principles including clinical factors
pertinent to the basic character, origin, and development of
the disorder. 38 C.F.R. § 3.304(b)(1). History given by the
veteran, which conformed to accepted medical principles, in
conjunction with basis clinical data, is probative evidence
of the incurrence, symptoms, and course of the disorder. 38
C.F.R. § 3.304(b)(2).
The veteran was referred for a Medical Board evaluation in
March 2001. The Medical Board issued a report in September
2001, which states the conclusions that the schwannoma
existed prior to service and was not permanently aggravated
by service, but rather progressed naturally in service.
In September 2005, the veteran submitted a private
physician's opinion that the "rigors of service as likely as
not caused [the] schwannoma to degenerate and become
symptomatic and problematic (aggravated beyond normal
progression)." See September 2005 Bash statement. The
examiner reiterated this opinion in October 2006.
An independent medical opinion was requested. In an August
2006 statement, the examiner stated that a schwannoma is the
most common benign tumor of the posterior mediastinum. The
examiner stated that the "etiology of its causation is
unknown and is not related to any factor," and it "could
have occurred before or during the military" service. The
examiner added that post-operative pain related to the
incision is the standard following any thoracotomy; it is a
"usual sequela."
The foregoing evidence does not "clearly and unmistakably"
show that the schwannoma preexisted service. There are no
medical records reporting that the veteran had a mediastinal
mass prior to service, and, according to the independent
medical examiner, the schwannoma could have had its onset at
any time. Because the evidence is not clear and unmistakable
that the schwannoma preexisted service, the presumption of
soundness is not rebutted, the schwannoma is considered to
have been incurred in service, and service connection for
post-thoracotomy pain syndrome is warranted.
VA has a duty to notify and assist claimants for benefits.
Although the record reflects that the RO has not provided
VCAA notice with respect to the initial disability rating and
effective-date elements of the claims, See Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006), those matters are not
currently before the Board, and the RO will have the
opportunity to provide the required notice before deciding
those matters. This decision grants service connection for
post-thoracotomy pain syndrome. As such, there is no further
need to discuss compliance with the duties to notify and
assist.
ORDER
Service connection for post-thoracotomy pain syndrome is
granted.
